Construction & Design Australia Pty Ltd v Robinson (No 3) - [2024] NSWSC 504

Supreme Court

New South Wales

Medium Neutral Citation: Construction & Design Australia Pty Ltd v Robinson (No 3) [2024] NSWSC 504
Hearing dates: On the papers; written submissions 24 April and 1 May 2024
Decision date: 02 May 2024
Jurisdiction: Common Law
Before: Stevenson J
Decision:
Defendants/cross-claimants pay the costs of the plaintiff’s/cross-defendant’s claim and cross-claim on the ordinary basis to 29 June 2023, and on an indemnity basis from 30 June 2023.

Catchwords:
COSTS – party/party – exceptions to general rule that costs follow the event – Calderbank offers – whether it was unreasonable for the defendants/cross-claimants not to have accepted the offers – whether the offers ought to have specified why the defendants’/cross-claimants’ cross-claim was without merit
COSTS – party/party – exceptions to general rule that costs follow the event – offer of compromise – where an offer of compromise was made by plaintiff and cross defendants pursuant to UCPR r 20.26 to settle the claim and cross-claim for $200,000 – where the plaintiff completely successful on claim and cross-defendants were substantially successful on the cross-claim – whether the offer was to compromise “any” claim in the proceedings – whether the offer identified the claim to which it related – whether offer capable of acceptance – whether possible to ascertain whether the result was no less favourable than the offer

Legislation Cited:
Uniform Civil Procedure Rules 1999 (Qld)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Chapel of Angels Pty Ltd v Hennessy Builder Pty Ltd [2018] QDC 248
Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2020] QSC 1
Construction & Design Australia Pty Ltd v Robinson (No 2) [2024] NSWSC 376
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344

Category: Costs
Parties: Construction & Design Australia Pty Ltd ACN 168 477 316 (Plaintiff/First Cross-Defendant)
Nerida Robinson (First Defendant/Cross-Claimant)
Mark Bowmer (Second Defendant/Cross-Claimant)
Gerard Peter Turnbull (Second Cross-Defendant)
Daniel John Turnbull (Third Cross-Defendant)
Representation:
Counsel:
M Klooster / M Waters (Plaintiff/Cross-Defendants)
A Crossland / B Flaherty (Defendants/Cross-Claimants)
Solicitors:
ZBA Lawyers (Plaintiff/Cross-Defendants)
PDC Law (Defendants/Cross-Claimants)

File Number(s): 2020/52689

JUDGMENT

I published my principal judgment in this matter on 11 April 2024.^[1] I am now dealing with the costs of the proceedings. I shall use the same abbreviations as in the principal judgment.
1. Construction & Design Australia Pty Ltd v Robinson (No 2) [2024] NSWSC 376.
On 19 April 2024, by consent, I made the following orders and notations:

Judgment for the plaintiff in the amount of $330,735.63 calculated in accordance with the terms contained in the notation below.

Judgment for the second and third cross-defendants.

Cross-claim otherwise dismissed.

Parties are to serve any evidence upon which they rely and written submissions not exceeding 8 pages setting out the costs orders they seek and the reasons why by 24 April 2024.

Parties are to serve any…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 504
Decision Date: 02 May 2024

CaseChat Overview and Summary

The case of Construction & Design Australia Pty Ltd v Robinson (No 3) involved a dispute between the plaintiff, a construction company, and the defendant, an individual, who was also a cross-claimant against the plaintiff. The primary issue in the case was the allocation of costs between the parties. The dispute arose from a construction contract and a cross-claim related to professional negligence. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine whether it was unreasonable for the defendants/cross-claimants to have rejected the plaintiff's Calderbank offers, which proposed to settle the claim and cross-claim for $200,000. The court also had to decide whether the plaintiff's offer of compromise was capable of acceptance, whether it related to any claim in the proceedings, and whether it was possible to ascertain whether the final outcome was no less favourable than the offer. The court needed to consider whether the offer was unreasonable and whether the defendants/cross-claimants should have specified why their cross-claim was without merit.

The court found that the Calderbank offers were unreasonable given the circumstances. The plaintiff was completely successful on the claim and the defendants/cross-claimants were substantially successful on their cross-claim. The court also determined that the offer of compromise was capable of acceptance and identified the claim to which it related. The court held that the final outcome was no less favourable than the offer, and thus the plaintiff was entitled to costs from the defendants/cross-claimants for rejecting the Calderbank offers. The court ordered that the plaintiff recover costs from the defendants/cross-claimants in relation to the rejected offers.

Orders